Photographer Sues State Of Texas For Using Image From His Photograph On Auto Inspection Stickers

from the even-governments-think-it's-ok-to-copy dept

Jon Snow points us to the story of a photographer who discovered that a photograph he took of a cowboy hoisting a saddle is being used as the background image on approximately 4.5 million inspection stickers:
inspection sticker
According to the report, the state had prison inmates create the stickers, and one simply scanned the image out of a "Texas Parks & Wildlife" magazine and used it as the background image. The photographer tried to get the state to pay up, but it refused, leading to the lawsuit. As Snow notes, this certainly might make you wonder what the statutory damages would be on 4.5 million instances of infringement? Of course, some of this may depend on the terms under which the original photo was licensed for the magazine (and if the magazine is a state run operation). Also, I could see the state claiming "sovereign immunity," which has become popular for state governments when they're accused of patent and copyright infringement claims. You see kids, when governments infringe, it's no big deal. But when regular everyday citizens do so, they should be forced to pay tens of thousands of dollars, apparently. Seems perfectly fair, right?


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 8:52am

    $150,000 * 4,500,000 = $675 billion! Payday!

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Hephaestus (profile), Nov 10th, 2010 @ 9:29am

      Re:

      Now that would be a kick in the pants. It would also show the absurdity of copyright infringement penalties. It would be cool if the EFF, someone at the creative commons, etc were to file an amicus brief stating the State of Texas should be held accountable to the fullest extent of the law and mention that number.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Jose_X, Nov 11th, 2010 @ 6:18am

        Re: Re:

        I agree with filing an amicus curiae brief and stating that number, but I wouldn't suggest they seriously try to argue that this value should be what is paid as a matter of course.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Nov 11th, 2010 @ 6:50am

          Re: Re: Re:

          Someone pointed out in other comments that the actual infringement would be for the number of distinct works infringed rather than for each such infringement. If that is true, would that mean that once I infringe on a work and pay up whatever is the fine that I have a de facto licenses to infringe forever making as many copies as I want? Or would I still be on the hook for anything I make after I infringe and was called out on it? Can you attempt to sell through secrecy as many copies as possible and then pay the standard maximum fine and keep all the profits accumulated? Where would criminal behavior lie?

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Nov 11th, 2010 @ 11:41am

            Re: Re: Re: Re:

            The copyright owner can get an injunction against further unauthorized copying, so any further infringement would violate that injunction and and give rise to other potential penalties (including possible contempt of court).

            Plus, the copyright owner could always elect to seek actual damages instead of statutory damages, and argue that you owe some reasonable royalty/license fee for each use.

             

            reply to this | link to this | view in chronology ]

    •  
      icon
      ethorad (profile), Nov 11th, 2010 @ 4:54am

      Re:

      Of course the problem with governments being fined, is there is really no such thing as "government money" or "public funds" - it's all just tax revenue from the public.

      As such a government fine is a levy shared among the entire (tax paying) population.

      Fining an individual or a company works as they can't just unilaterally make more money to cover the fine (as if they could have made more money, they would have done so regardless of the fine)

      Fining a government only works to the extent that someone now has hassle to decide how to recoup the fine - higher tax, more debt or even print money (I doubt that budgets would be cut). Not quite a problem on the same scale of an individual/corporate fine.

      Of course, enough fines of decent size and people will start to get annoyed with government incompetence - but likely as not the government would head that off by somehow exempting themselves from the fines.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 9:00am

    Federal copyright law was amended some years ago to enable its enforcement against states, but the amendment was struck down. Importantly, while state sovereign immunity figured prominently in the court decision, such immunity is not absolute and can be deemed waived in certain conditions in the future are deemed to have been met.

    Since federal law does not apply, the rights holder is not necessarily without recourse since most state constitutions provide for state liability in cases such as this. In other words, the claim is not based upon federal law, but upon state law.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    TSO, Nov 10th, 2010 @ 9:16am

    Mmmm... exercising double standards. America's favorite pastime!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 9:28am

    Wouldn't it be nice if.....?

    Judges are supposed in theory to be completely impartial and independant right? Wouldn't it be nice to see one decide indeed that "sauce for the goose...." is valid and have some part of government for a massive fortune?

    Let see.... say $60,000 per count? I make that ummm $270 billion? I'd lay a small wager copyright reform might loom a little larger on the political agenda then.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      PRMan, Nov 10th, 2010 @ 9:42am

      Re: Wouldn't it be nice if.....?

      "I'd lay a small wager copyright reform might loom a little larger on the political agenda then."

      I'll take that bet and I'll bet you again that judicial reform comes first...

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        crade (profile), Nov 10th, 2010 @ 10:06am

        Re: Re: Wouldn't it be nice if.....?

        Instead of fixing a broken law, you figure they will fix the judge for following what the broken law says?

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Nov 10th, 2010 @ 10:49am

          Re: Re: Re: Wouldn't it be nice if.....?

          Instead of fixing a broken law, you figure they will fix the judge for following what the broken law says?
          Yes my hope did rather rely on the hypothetical independant and impartial judge. And shorty after that I shall be elected pope....

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Charlie Potatoes, Nov 10th, 2010 @ 9:49am

    Paying off ...

    So what? We can just ask each illegal in Texas to chip in $.50 and we can pay up AND have a budget surplus.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      ac, Nov 10th, 2010 @ 10:19am

      Re: Paying off ...

      something tells me that if TX could find the illegal immigrants in the first place they wouldn't be around to pony up the $.50.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Jose_X, Nov 11th, 2010 @ 6:29am

        Re: Re: Paying off ...

        I'm a legal migrant and have been a US citizen for many years.

        I understand that nations create laws and a great many of them have laws to limit immigrants, but I don't understand (except to the degree meant as humor, and it was a little funny) how someone born in one country with certain benefits would think they hold anything over someone else that had the much less fortune of having been born in a potentially significantly less desirable location.

        Should the natives of this land as was the case around the 16th century have expelled the Europeans and any others that dared "claim" the land in the name of some aristocratic patron or other? Are not 99% of all US citizens today immigrants or descendants of immigrants if we go back far enough? [ignore for a moment the technicality of all your ancestors having come from those that inhabited this land around 1790]

        And another point is that many illegal immigrants do work hard and frequently harder than numerous citizens. Many surely do not, but I hope anyone suggesting in earnest a solution to illegal immigration is not lumping everyone in the same "boat", whether that be the Nina, Pinta, Santa Maria, or any other craft.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Nov 11th, 2010 @ 6:35am

          Re: Re: Re: Paying off ...

          >> I'm a legal migrant

          That would be "immigrant"

          >> have laws to limit immigrants

          That would be "to limit immigration"

          I'm sure I made other mistakes. Please don't get offended for bits of sloppiness here and there.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    NullOp, Nov 10th, 2010 @ 9:53am

    Infringement

    Ha! Sue 'em till their balls drop off!

    Of course not all the facts are presented but it sure looks as if TX is in the hotseat here. I certainly hope this photog makes good on his claim and is properly compensated. Governments at all levels claiming "sovereign immunity" is a huge, stinking load of BS. I wonder how much longer the American people are going to allow this BS to continue? TX should give the photog a few million and call it even. What will happen is they will waste millions in litigation instead.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 10:07am

    redo title too

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Ima Fish (profile), Nov 10th, 2010 @ 10:09am

    Even without the immunity defense, the guy will never see any money. Unfortunately, I can't find the article, but it's nearly impossible to collect judgments against the state of Texas.

    In a nutshell, as we all know, budgets are created by legislative branches of government. In Texas, only the legislature can budget the payment of a judgment. To put it another way, a court cannot force the payment of a judgment by the state of Texas, or any city or municipality of Texas.

    Even if you get a judgment against the government in Texas, you have to go through all the rigmarole to get the state legislature to pass a budget to get your money, which is completely their discretion. That rarely happens.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Law Student, Nov 11th, 2010 @ 9:04pm

      Re: Ima Fish

      You're wrong. If the judiciary rules against the state, then the legislature has nothing to do with "approving" payment. The copyright statutes involved are subject to appeal, but the highest level of appeal has the final say regardless of whether or not the state legislators like the result. Once the highest level of appeal has ruled against the state on the issue, the state is required to pay.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Roger in Texas, Nov 10th, 2010 @ 10:36am

    Appears that it is a State Publication

    Texas Parks & Wildlife magazine
    4200 Smith School Road, Bldg. D
    Austin, TX 78744
    Phone: (800) 937-9393
    Fax: (512) 389-8397
    E-mail: magazine@tpwd.state.tx.us

    Depending on his agreement when he sold them the photo, he may not have a leg to stand on.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    deadzone (profile), Nov 10th, 2010 @ 10:40am

    It sucks that he more than likely won't see much, if any, profits from the State of Texas for use of his image, but that's life and it's way unfair most of the time.

    Hopefully, he can make something positive out of this and at least use the publicity in some way to make money in other ways as a photographer.

    In reality, expecting to get paid everytime for usage of something that you create is a pretty unrealistic expectation that is next to impossible to attain.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Ryan Diederich, Nov 10th, 2010 @ 10:42am

    Ummm

    Isnt there a rule about this sort of thing, that if you modify at least 1/3 of the work (this might apply to written work only I dont know) then copyright no longer applies? It looks pretty modified to me.

    The state does not profit from the use of the image, therefore should it fall under fair use?

    If the photographer has been selling the image, how can he claim damages? It isnt as if someone who gets their new inspection sticker isnt going to buy his work now. I would think someone might be MORE likely to seek out the photograper and buy works from him.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      nasch (profile), Nov 10th, 2010 @ 10:57am

      Re: Ummm

      If you modify a work enough (there is no fixed percentage) it may be judged transformative. Depending on other factors, this may qualify the use of the work as fair use. Given that this is a large scale commercial (or can they claim it's not commercial because it's government?) use and is easily recognizable as the original work, I'm not sure a fair use claim would stand up. They can certainly point out that these stickers don't harm the market for the original though.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Jack, Nov 11th, 2010 @ 11:00pm

      Re: Ummm

      you are full of assumptions and zero facts. Copyright does not function in any of the ways you describe.

      The notion you have regarding fractions of work altered is a myth. Furthermore, fair use only protects those using copyrighted material for non-profit satire or educational purposes.

      Also, the photographer didn't "sell" his photograph in the past the way you seem to imagine, he licensed the usage of it. If he wrote his contract properly, then he stipulated a geographic location, method of reproduction and time-frame of reproduction, and collected a fee for those specific usage rights.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        nasch (profile), Nov 12th, 2010 @ 8:13am

        Re: Re: Ummm

        Furthermore, fair use only protects those using copyrighted material for non-profit satire or educational purposes.

        That is not correct, a commercial use of a work can absolutely be fair use, depending on the balance of these four factors:

        1. the purpose and character of your use
        2. the nature of the copyrighted work
        3. the amount and substantiality of the portion taken,
        4. the effect of the use upon the potential market.

        What you mentioned is only number 1.

         

        reply to this | link to this | view in chronology ]

  •  
    icon
    Overcast (profile), Nov 10th, 2010 @ 10:56am

    "wonder what the statutory damages would be on 4.5 million instances of infringement?"

    Well, if you use the Jammie Thomas case as a precedent...

    According to this: http://en.wikipedia.org/wiki/Capitol_v._Thomas

    It was 24 songs, the final judgment was 54,000.00
    $2250.00 per infringement.

    In this case then, with 4.5 Million 'infringements' - the amount they could sue for - AND use the Jammie Thomas case to establish the precedent would be: $10,125,000,000

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Overcast (profile), Nov 10th, 2010 @ 11:05am

    "They can certainly point out that these stickers don't harm the market for the original though."

    Maybe...

    Not sure that would be so easy. Would part of the potential market have been licensing use of the image for auto inspection stickers? If so, it most certainly has significantly impacted his potential 'market' for licensing sales.

    PLUS in addition to that - conceptually, the artist could say that since the image is now 'common' on Auto Inspection stickers, that it will be harder to sell the original image as it's not really 'unique' and most would associate the image with the auto inspection sticker.

    So instead of a comment about the 'cool looking cowboy picture' on the wall, the comment would be 'why do you have a more detailed copy of the auto inspection sticker' - etc..

    Kinda like the difference between having an original painting of a Cowboy as 'art' - in comparison to having an image of the Marlboro man on the wall. Wouldn't it? I think they could make that argument. Overly popular 'pop-art' and it's value is much different from original/unique art - I would think.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Overcast (profile), Nov 10th, 2010 @ 11:07am

    Of course - I might add.. In reality... This will likely get the artist's name known and may well - in the end, result in MORE sales. Due to 'free' advertising.

    I admit, I like the picture, it's certainly artistic. I'm not a particular fan of 'cowboy' art, but I know someone who is and some art like that would certainly interest them.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Chronno S. Trigger (profile), Nov 10th, 2010 @ 11:33am

      Re:

      I agree, it has a good artistic quality to it. If I was him I'd have a copy of the sticker and the original photo with me everywhere I went to tell people that I was so good I'm now on 4.5mill cars.

      I have no idea what Texas expected, though. It's not like prisoners could stage their own photo shoot. Granted a guy with a ball and chain may have been more appropriate, but the budget for a camera probably doesn't exist.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 11:14am

    I hope this photographer DOESNT get compensated. If this assclown hadnt taken a photo of a cowboy, someone else wouldve, and that one wouldve got used instead. Big deal.

    Tell you what, let the governor buy him a beer and call it square.

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 10th, 2010 @ 11:31am

      Re:

      I hope this photographer DOESNT get compensated. If this assclown hadnt taken a photo of a cowboy, someone else wouldve, and that one wouldve got used instead. Big deal.
      I might agree with you, except that then it should also apply to the "assclown" who issued a copyright infrigement notice for the "use" of a song that happend to be in the background of a baby dancing and all teh other smilar "assclown"s don't you think?

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 11:23am

    That's Texas Law son and don't you forget it.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Gracey, Nov 10th, 2010 @ 11:34am

    Lets see... a prison inmate scanned the photo to use for the sticker.

    Did he choose it himself?

    If so "oh the irony"...

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 11:53am

    FYI, statutory damages aren't based on the number of infringements, but the number of infringed works.

    In other words, the maximum statutory damages available in this case would be $30,000 (or $150,000 if willful infringement is shown).

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Nov 10th, 2010 @ 12:25pm

      Re:

      FYI, statutory damages aren't based on the number of infringements, but the number of infringed works.

      In other words, the maximum statutory damages available in this case would be $30,000 (or $150,000 if willful infringement is shown).


      You're right, but don't expect Mike to admit it. Mike doesn't let a silly little thing like reality cramp his style when he's complaining about IP laws.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        Mike Masnick (profile), Nov 10th, 2010 @ 3:15pm

        Re: Re:

        You're right, but don't expect Mike to admit it. Mike doesn't let a silly little thing like reality cramp his style when he's complaining about IP laws.

        Heh. What I get for replying to comments in order, instead of reading through them all first.

        Anyway, just want to point out that the above is not at all true. I admit to being wrong quite frequently. But only when I am, actually, wrong.

         

        reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Nov 10th, 2010 @ 3:13pm

      Re:

      FYI, statutory damages aren't based on the number of infringements, but the number of infringed works.

      Ahh! Good point... Though, is that really the case? If someone makes a single counterfeit CD do they face the same damages as if they made 100,000 counterfeit CDs? If so, that seems odd.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        Karl (profile), Nov 10th, 2010 @ 4:29pm

        Re: Re:

        If someone makes a single counterfeit CD do they face the same damages as if they made 100,000 counterfeit CDs?

        Yep.

        Of course, if you made a single counterfeit CD, nobody would care.

        If you did sue, good luck in getting the jury to grant damages above the statutory minimum. (Though with the Thomas case, who knows.)

        On the other hand, someone who made 100,000 counterfeit CD's and sold them, would likely be sued for actual damages, since those can be proven in this case.

         

        reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Nov 11th, 2010 @ 11:44am

        Re: Re:

        When talking about statutory copyright infringement damages, yes.

        Of course, there are other "counterfeit"-specific laws and I haven't looked up the penalties/damages for those recently, so I'm not sure.

        In a case where someone's selling 100,000 counterfeit CD's, the infringer's profits and/or actual damages may add up to more than the maximum statutory damages.

         

        reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 12:39pm

    A matter of nuance

    Just hope Texas doesn't screw up and claim "diplomatic immunity" instead of "sovereign immunity", as the former can be revoked very easily.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    DL, Nov 10th, 2010 @ 12:52pm

    Marlboro should sue!

    When I saw the picture I immediately wondered why Marlboro was sponsoring Texas registration.

    Maybe I am moron in a hurry?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    rec9140, Nov 10th, 2010 @ 12:54pm

    considering that that TX is the biggest headache in the IP/copyright/patent mess I say PAY UP!

    $150K x 4.5Million, x3 (trebled) WORKS FOR ME!

    Cash on the whiskey barrel SON!

    Couldn't happen to a better bunch of sleaze. Maybe some of the patent/ip/copyright trollists down there in east TX can chip in a few nights worth of bar tabs and they can cover it in a few hours...

    Sometimes the system does work, as whole is fubar'd but in this case... CHACHING!!

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Nick (profile), Nov 10th, 2010 @ 2:08pm

    Hey!

    He'll be able to hold the suit in east texas! and we all know how favorable they are to the ip holders!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Nov 10th, 2010 @ 7:49pm

    If immunity is waived or does not apply, and the licensing (the magazine _was_ published by the state) didn't permit it directly, the state would likely prevail on a fair use defense. As to government equivalency : consider the ramifications of Citizens United if it applied to the government instead of (or in addition to) corporations.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Karl Bratby, Nov 11th, 2010 @ 12:09am

    copyright

    I for one will support this case, surely they should have checked the source of the image before going to press.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Pat town, Nov 11th, 2010 @ 3:29am

    The image has been changed so the copyright no longer applies

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Mark Astle, Nov 11th, 2010 @ 5:11am

    This

    If it was a non-silhouetted shot of a cowboy, and they'd made it into a silhouette, where would the law stand?

    There must be a hundred shots like this on royalty free stock libraries though - they really should have checked their sources.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Gene Cavanaugh, Nov 11th, 2010 @ 9:34am

    Copyright infringement

    You see kids, when governments infringe, it's no big deal. But when regular everyday citizens do so, they should be forced to pay tens of thousands of dollars, apparently. Seems perfectly fair, right?

    Well, yes, DUH! The State is us; if we pay, we have a lot of innocent people who had nothing to do with infringement being pounded. Additionally, an individual likely got some financial gain that should go to the holder, with the State official? If there was financial gain, they should go to jail; that isn't what their office is for.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Karl (profile), Nov 12th, 2010 @ 12:28am

    Prisoners

    According to the report, the state had prison inmates create the stickers

    Does anyone else find this more disturbing than the actual copyright lawsuit?

    How bad is Texas' economy where they hire prisoners as graphic designers? And is this happening nation-wide?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Adrian, Nov 12th, 2010 @ 12:29am

    Is this copyright?

    Are you sure we are talking about copyright here? I don't see the photo on that inspection sticker. All I see is a drawing, although very similar to the man in the photo, but still... a drawing. It's like I can acuse someone for invading my privacy because he photographed my shadow. Am I wrong?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    lol, Nov 12th, 2010 @ 5:45am

    ...

    The first problem here is having prison inmates create the sticker.

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This